Lund v. Walker

Lund v. Walker

Majority: The dismissal endorsed "by consent of the plaintiff" was not a consent judgment within s.23 because the consent of all parties to the issue was not shown; therefore the plaintiff retained the right to appeal; on the merits the trial judge erroneously excluded evidence essential to the plaintiff's case and a new trial was ordered.

Citation
[1931] SCR 597
Parties
Plaintiff Appellant: Albert Lund; Defendant Respondent: Harrington Walker; Defendant (stayed): Hiram Walker & Sons, Limited; Defendant (stayed): C. W. Isaacs
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 June 1931
Procedural Posture
Appeal to Supreme Court of Canada / Final Decision on Appeal (judgment)
Outcome
Appeal allowed; trial judgment dismissing action vacated; new trial ordered.
Legal Topics
Consent Judgment, Right of Appeal, Exclusion of Evidence, New Trial, Fiduciary Non‑disclosure, Stay of Proceedings
Source Language
English
Civil Procedure Trusts and Fiduciary Duty Evidence Appellate Law Consent Judgment Right of Appeal Exclusion of Evidence New Trial +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

Albert Lund

Plaintiff Appellant

Harrington Walker

Defendant Respondent

Hiram Walker & Sons, Limited

Defendant (stayed)

C. W. Isaacs

Defendant (stayed)

Procedural Posture

Appeal to Supreme Court of Canada / Final Decision on Appeal (judgment)

Legal Issues

  1. 1 Whether the trial judgment was an order "made with the consent of parties" within s.23 of the Ontario Judicature Act, thereby ousting the right of appeal
  2. 2 Whether counsel's statements constituted consent binding on the parties for purposes of s.23
  3. 3 Whether exclusion of evidence at trial was erroneous and warranted a new trial

Ratio Decidendi

Majority: The dismissal endorsed "by consent of the plaintiff" was not a consent judgment within s.23 because the consent of all parties to the issue was not shown; therefore the plaintiff retained the right to appeal; on the merits the trial judge erroneously excluded evidence essential to the plaintiff's case and a new trial was ordered.

Court Disposition

Appeal allowed; trial judgment dismissing action vacated; new trial ordered.

Orders

  • New trial ordered
  • Judgment dismissing the action vacated